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Judgment
The petitioners have filed the present writ petition assailing the order dated 19th March, 2019 against the list of selection of candidates prepared on 03.04.2019.
Dr. Hossian submits that all the petitioners have passed the Bachelor of Medicines and Bachelor of Surgery (M.B.B.S.). The petitioners along with in- service Doctors appeared for M.D and M.S. Examination through National Eligibility-cum- Entrance Test Post Graduate (NEET-PG), 2019 conducted by National Board of Examination (NBE) at all India level. Since the petitioners have been duly qualified in the written Examination, therefore, the petitioners were called for State counselling which starts from 29th March, 2019. Accordingly, the petitioners appeared in the State counselling. The petitioners on 5th March, 2019 made a representation before the State Authorities to follow guideline of the Medical Council of India Post Graduate Medical Education Regulations, 2000 as amended up to May, 2018 for preparing common eligibility test. But without considering the same on 29th March, 2019 the authority issued notice thereby reserving 40 % seats for the in service doctors and 60% seats for open market doctors. Assailing the same, the petitioners filed the present writ petition.
The petitioner No. 1 states that on 5th March, 2019 made representation before the State Authority to prepare the common eligibility list as per the guidelines of Medical Council of India Postgraduate Medical Education Regulations, 2000 as amended up to 2018. Unfortunately, by the impugned order dated 29th March, 2019 without taking any step to dispose of the petitioners' representation in accordance with the said Regulations, the Authority, out of 100% seats, have reserved 60% seats for the Doctors for open market and rest 40% seats for in- service Doctors, which is contrary to the aforesaid Regulations.
Dr. Hossain further submits that only first round of counselling has been completed. The second round of counselling will be held today i.e. on 26th April, 2019 thereby giving notice only on 25th April, 2019 itself. Therefore, without finding any alternative, the petitioners have approached before this Hon'ble Court thereby filing the present writ petition.
Despite service of notice, none appears on behalf of the respondent authorities.
Dr. Hossain further contends that number of total eligible candidates from open market are 1499 whereas number of in-service Doctors are 410. Therefore, this discrimination between the candidates as open market candidates and in-service candidates could not be sustained in the eye of law.
Dr. Hossain further submits that the Authority should be directed to prepare the common list of eligible candidates on the basis of the merits as per the Medical Council of India Post Graduate Medical Education Regulations, (as amended up to May, 2018) but only weightage for the in-service candidates who worked in the remote rural area, 10% marks would be awarded to those in service Doctors. In support of his contention Dr. Hossian draws attention of the Court to clause -4 of the aforesaid Regulations- 2000. The clause -4 of the Regulations is quoted below:
Clause -4 "The reservation of seats in Medical Colleges/ Institutions for respective categories shall be as per applicable laws prevailing in States/ Union Territories. An all India merit list as well as State- wise merit list of the eligible candidates shall be prepared on the basis of the marks obtained in National Eligibility -- um- Entrance Test and candidates shall be admitted to Postgraduate Courses from the said merit lists only.
Provided that in determining the merit of candidates who are in service of government/ public authority, weightage in the marks may be given by the Government/ Competent Authority as an incentive upto 10% of the marks obtained for each year of service in remote and / or difficult areas of Rural areas upto maximum of 30% of the marks obtained in National Eligibility -cum- Entrance Test. The remote and / or difficult areas or Rural areas shall be as notified by State Government/ Competent authority from time to time". But in the impugned letter dated 29th March, 2019, the Authority arbitrarily and/or illegally has reserved 40% seats out of 100% for in-service Doctors and only 60% seats was reserved for the open market Doctors".
Dr. Hossian further contends that only on 25th April, 2019 West Bengal University of Health Sciences issued letter thereby fixing the 2nd round of counselling on 25th April, 2019 after being aggrieved by the same Dr. Hossian in conclusion submits that unless the Court restrains the respondent authorities to hold the further counselling which is fixed today i.e. on 26th April, 2019, the petitioners will suffer from irreparable loss and injury in respect of their career.
Considering the submission as advanced by Dr. Hossain and after perusing the records, I observed that the Medical Council of India Postgraduate Medical Education Regulations, 2000 as amended up to May, 2018 clearly provides that the merit list would be prepared for the National Eligibility-cum-Entrance Test Post Graduate, (NEET-PG) 2019 only weightage of 10 % marks would be given to the in-service candidates who worked for remote rural area but in the present case 40 % seats have been reserved for the in service doctors thus violating the existing guideline. Therefore, in my considered view, the petitioners have been able to make out a prima facie case.
Accordingly, after being prima facie satisfied, the West Bengal University of Health Sciences on 26th April, 2019 was restrained from holding further second round of counselling which was fixed on and from 25.04.2019 after 3 P.M. to 26.04.2019 6.00 P.M. till 1st May, 2019.
It was further directed that the matter will appear on 30th April, 2019 under the heading "To Be Mentioned".
On 1st May, 2019 when the matter was taken up Dr. Hossain submits that long back on 5th March, 2019 the petitioners have already submitted a representation thereby ventilating their grievance before the appropriate authority. Unfortunately, without taking any decision in the petitioners' representation, the respondent authority has illegally and arbitrarily started the counselling.
On last occasion Mr. Das, appearing for the WBUHS (in person), submits that the last date of 2nd phase of counselling is fixed on 3rd May, 2019.
Considering the above submissions advanced by the respective parties, the interim order already passed was modified to that extent that the respondents are at liberty to complete the 2nd phase of counselling but no result shall be published and also no seat shall be filled up without the leave of the Court.
On 15th May, 2019, after hearing Mr. Das, appearing for the WBUHS (in person) Court was not at all satisfied with the submission of Mr. Das pertaining to the issue that in-service doctors have served in the remote, difficult and rural areas as per Regulation 9(IV) of the MCI P.G. Medical Education Regulations, 2000 (as amended upto May, 2018). Therefore, this Court directed the respondent authorities to produce the list of in-service doctors who have served in the remote areas as per the above mentioned Regulation of the MCI P.G.
Being dissatisfied with this order, the respondent authority preferred appeal being M.A.T. 693 of 2019 along with CAN 4850 of 2019 before the Hon'ble Division Bench. Both the appeal and the connected application were dismissed by the Hon'ble Division Bench.
Today, when the matter is taken up the petitioners have prayed to implead the Medical Council of India as party respondent. Such prayer is allowed.
Therefore, leave, as prayed for, is granted to the petitioners to implead the Medical Council of India as party-respondent no.9 here and now.
The petitioners are directed to serve a copy of the writ petition and the affidavit-in-opposition as well as the affidavit-in-reply upon the newly added respondent no.9 and to file affidavit of service on the next occasion.
Pursuant to the earlier order, today Mr. Anup Das, appearing in person on behalf of WBUHS, produces a list of in-service doctors who served in the remote, difficult, distant and rural areas. Unfortunately, after perusing the list, Court did not find any indication pertaining to the effect that these in-service doctors served in the remote, difficult, distant and rural areas.
That being the scenario, it is submitted by Mr. Anup Das that the identification regarding serving at remote, distant and rural areas is in process. It is also submitted by Mr. Das that the last date of admission for Post Graduate Medical Courses by the Medical Council of India is 31st May, 2019.
In this backdrop, since it is not at all clear whether those in-service doctors serve in remote, rare area, therefore, I direct the Medical Council of India to extend the date of admission in respect of the students for M.D.& M.S. Examination of this State till 29th June, 2019 or until further order whichever is earlier.
Interim order, already passed, is extended till 28th June, 2019.
Let the matter appear on 11th June, 2019 at 2 p.m. under the same heading.
Let photostat plain copy of this order, duly countersigned by the Assistant Registrar (Court), be given to the parties on usual undertakings.